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Baroness Scotland of Asthal: My Lords, I will straight away thank the noble Lord, Lord Adebowale, for his warm welcome. I appreciate the flattering comments. I do not feel that they are deserved, but I will accept them nonetheless.
The series of amendments tabled in relation to this issue have, I know, caused a lot of concern. The proposal contained in Amendments Nos. 42 to 44, 46 to 48, 50 to 52 and 54 to 56 was debated on Report through amendments tabled by the noble Lady, Baroness Noakes, and the noble Lord, Lord Astor. As has already been said, "capacity to consent" is defined in Clause 32 to 35 as "unable to refuse", rather than "unable to consent", because if the latter phrase were used it would refer back to the definition of consent at Clause 76 and would be circular, as the clause refers to "capacity to consent".
I would understand the concern behind the noble Lord's Amendments Nos. 45, 49, 53 and 57, which would remove the phrase "to choose whether" from the definition of unable to refuse (or consent), if that implied that choice was not related to capacity, but clearly it is in this definition. The amendment proposed introduces an unnecessary tautology when it refers to lacking the capacity to consent if he lacks the capacity to agree.
My noble and learned friend, Lord Falconer, on Report stated that he was not fundamentally opposed to including a generic definition of capacity to consent in statute, but that he needed time to consider the consequences of such a definition; and, if we choose to include one, the best way to formulate it.
We had hoped to take the matter forward on Third Reading, but as my noble friend Lord Filkin explained in his letter to the noble Lord, Lord Astor—which was, I hope, copied to other noble Lords who spoke at Report stage— regrettably it has not been possible to do so. I can assure my noble Lords that this will be pursued and returned to later during the Bill's passage through Parliament when it goes to another place.
I repeat that we are aware of the need in these clauses to balance the need to provide protection with recognising the civil rights of those with a mental disorder or learning disability. I do not feel able to
accept these amendments, but I have listened carefully to the debate on this issue. We will take the matters raised into account as part of our further deliberations on the question of the definition of consent generally. I thank both noble Lords who have spoken, because they bring a certain level of expertise and understanding to this issue which the Government are happy to take very seriously indeed.In relation to the noble Lord's request for a meeting with the coalition, Beverly Hughes, Hilary Benn and the noble and learned Lord, Lord Falconer, have met members of the coalition previously. Officials are in regular contact with the coalition. My honourable friend Paul Goggins many also want to consider a meeting with members again, now that the Bill will soon be passing to the House of Commons. That may be the most appropriate meeting, but there is certainly no resistance to continuing to have that dialogue. I am sure that some accommodation will be possible.
Lord Adebowale: My Lords, I am grateful to the noble Baroness, Lady Scotland, for her response, which provides me with some of the assurances that I need. When the Bill reaches another place, I hope that some appropriate amendments will be made. I am still a little concerned, but I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 43 to 45 not moved.]
Clause 33 [Causing or inciting a person with a mental disorder or learning disability to engage in sexual activity]:
[Amendments Nos. 46 to 49 not moved.]
Clause 34 [Engaging in sexual activity in the presence of a person with a mental disorder or learning disability]:
[Amendments Nos. 50 to 53 not moved.]
Clause 35 [Causing a person with a mental disorder or learning disability to watch a sexual act]:
[Amendments Nos. 54 to 57 not moved.]
Clause 40 [Care workers: sexual activity with a person with a mental disorder or learning disability]:
Baroness Scotland of Asthal moved Amendments Nos. 58 and 59:
- Page 19, line 34, after "disability," insert—
On Question, amendments agreed to.
Clause 41 [Care workers: causing or inciting sexual activity]:
Baroness Scotland of Asthal moved Amendments Nos. 60 and 61:
On Question, amendments agreed to.
Clause 42 [Care workers: sexual activity in the presence of a person with a mental disorder or learning disability]:
Baroness Scotland of Asthal moved Amendments Nos. 62 and 63:
On Question, amendments agreed to.
Clause 43 [Care workers: causing a person with a mental disorder or learning disability to watch a sexual act]:
Baroness Scotland of Asthal moved Amendments Nos. 64 and 65:
On Question, amendments agreed to.
Clause 44 [Care workers: interpretation]:
[Amendments Nos. 66 to 68 not moved.]
Clause 46 [Sections 40 to 43: sexual relationships which pre-date care relationships]:
Clause 48 [Criminal investigations or proceedings]:
Baroness Scotland of Asthal moved Amendment No. 70:
The noble Baroness said: My Lords, before I rise to speak to the Amendment No. 70, with the leave of the House I will add an additional two words in relation to the question raised by the noble Lord, Lord Lucas. I must make clear that we hope that reprimands would not be given at all, and that they would be removed for the category about which we spoke. In addition, we are amending the schedule on registration, so that young offenders will only go on the register if they receive a custodial sentence.
I hope that that clarifies the matter, and that it might give even greater comfort to those noble Lords who may be worrying about my earlier lack of precision.
Clause 48 inserts a new provision into the Protection of Children Act 1978 and into the equivalent Northern Ireland legislation allowing named persons—for example, the Director of Public Prosecutions—to authorise the making of indecent photographs of children where this is necessary for the prevention, detection or investigation of crime, or for criminal proceedings.
These amendments to Clause 48 would allow the heads of Security Service and GCHQ also to authorise the "making" of indecent photographs, or pseudo-photographs, of children by their staff, when it is necessary in pursuit of their duties. The duties of staff in both organisations can involve investigation of known paedophiles. GCHQ, for example, may undertake forensic work, assisting the law enforcement authorities for serious crime or national security purposes.
It is not Government policy to talk about operations relating to national security, but we can assure noble Lords that these are real, and not hypothetical, circumstances. For example, in the course of a national security investigation, it may be necessary for staff in the Security Service to seek information of intelligence interest that may be buried within an indecent image and to make a copy for that purpose. I beg to move.
"( ) A knows or could reasonably be expected to know that B has a mental disorder or learning disability,"
Page 19, line 36, leave out subsection (2) and insert—
"( ) Where in proceedings for an offence under this section it is proved that the other person had a mental disorder or learning disability, it is to be taken that the defendant knew or could reasonably have been expected to know that that person had a mental disorder or learning disability unless sufficient evidence is adduced to raise an issue as to whether he knew or could reasonably have been expected to know it."
Page 20, line 16, after "disability," insert—
"( ) A knows or could reasonably be expected to know that B has a mental disorder or learning disability,"
Page 20, line 18, leave out subsection (2) and insert—
"( ) Where in proceedings for an offence under this section it is proved that the other person had a mental disorder or learning disability, it is to be taken that the defendant knew or could reasonably have been expected to know that that person had a mental disorder or learning disability unless sufficient evidence is adduced to raise an issue as to whether he knew or could reasonably have been expected to know it."
Page 21, line 1, after "disability," insert—
"( ) A knows or could reasonably be expected to know that B has a mental disorder or learning disability,"
Page 21, line 3, leave out subsection (2) and insert—
"( ) Where in proceedings for an offence under this section it is proved that the other person had a mental disorder or learning disability, it is to be taken that the defendant knew or could reasonably have been expected to know that that person had a mental disorder or learning disability unless sufficient evidence is adduced to raise an issue as to whether he knew or could reasonably have been expected to know it."
Page 21, line 21, after "disability," insert—
"( ) A knows or could reasonably be expected to know that B has a mental disorder or learning disability,"
Page 21, line 23, leave out subsection (2) and insert—
"( ) Where in proceedings for an offence under this section it is proved that the other person had a mental disorder or learning disability, it is to be taken that the defendant knew or could reasonably have been expected to know that that person had a mental disorder or learning disability unless sufficient evidence is adduced to raise an issue as to whether he knew or could reasonably have been expected to know it."
Page 23, line 34, leave out from "given" to "necessary" in line 35 and insert "by a person within subsection (2A) if it appears to that person"
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